moral and legal convictions. Applying an internalist methodology, he—like my incarcerated father—found a way to “make the frozen circumstances dance by playing to them their own melody.”
Social morality—as distinct from popular morality—provides a basis for critiquing even widely shared beliefs and attitudes. Social morality consists of moral standards rooted in aspirations for the community as a whole, and that can fairly be said to have substantial support in the community or can be derived from norms that have such support.19 “Popular morality,” on the other hand, consists of moral norms that reflect a majority of opinion about appropriate behavior at some particular point in time. Despite considerable overlap between social morality and the popular version, they are not coextensive. Popular opinions about morally acceptable behavior feed social morality, but social morality is a river fed by many streams. A nation’s constitutional promises, for example, contribute to its social morality, even when that nation, seized by popular prejudices and opinions about morally acceptable behavior, breaks those promises for a period of time, as it did when the United States interned Japanese Americans in concentration camps during World War II. That the United States has officially repented of its wartime treatment of Japanese Americans and offered monetary restitution for its transgressions points to its own realization that popular judgments of appropriate behavior at a given time may contradict deeper norms and convictions that the formerly popular judgments dismissed too lightly.
Indeed, most constitutional provisions work this way—they are promises a body politic makes to itself, ideally at the behest of its nobler impulses and “higher angels,” which it hopes will protect its better self from a later weaker or less just self; they are the ropes Ulysses uses to bind himself to the mast to help him resist the siren songs he knows await him. Sadly, however, given the Supreme Court’s recent assault on the Bill of Rights, which has been significantly fueled by the very fear of Black crime that we are considering, it appears that some of Ulysses’ robed shipmates are bent on hacking away at his self-imposed coils in the name of siren justice.
Once the relationship between social and popular morality is properly understood, it is easier to see the flaw in the claim of the Reasonable Racist. The Reasonable Racist assumes that the sole function of the reasonable-man test is to reflect popular morality and that the sole objective of the legal system is to punish those who deviate from popular attitudes and beliefs. The role of the courts, from this perspective, is to observe rather than define the attributes of the reasonable man.
Whether courts that apply the reasonable-man standard should merely accommodate prevailing attitudes and practices or instead actively channel them in directions that serve higher social interests is a long-standing legal debate. In the famous torts case of T. J. Hooper,20 for example, a defendant tug owner argued that the reasonableness of his decision not to equip his tug with a safety device should be judged on the basis of the behavior of most other tug owners. Because most other tug owners also failed to install the safety devices, the defendant argued, his failure to install them should be deemed reasonable. Judge Learned Hand, writing for the court, refused to equate the reasonable with the typical, however. Making it clear that courts do not merely observe, but actively define standards of reasonable behavior, Hand held: “[I]n most cases reasonable prudence is in fact common prudence; but strictly is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices…. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” Hand’s recognition that courts have a duty to actively define standards and thereby channel social behavior applies with equal force to both civil and criminal cases.21
This analysis exposes the fallacy of equating reasonableness with typicality. Even if the “typical” American believes that Blacks’ “inherent propensity” toward violence justifies a quicker and more forceful response when a suspected assailant is Black, this fact is legally significant only if the law defines reasonable beliefs as typical beliefs. The reasonableness inquiry, however, extends beyond typicality to consider moral standards rooted in aspirations for the community as a whole. Even when such moral standards are ignored by most of a community, it is incumbent upon the courts, as trustees of these higher standards, to hold the community accountable to them.
Avoidance of invidious racial discrimination has achieved the hard-won status of a core value in this nation’s social morality. Support for this value can be readily found in sources ranging from constitutional provisions and legislative decrees to newspaper editorials. Accordingly, courts must not allow an attribute like irrational racial bias to figure in the formulation and application of the reasonable-man standard, however widespread that attribute may be. Although in most cases the beliefs and reactions of typical people reflect what may fairly be expected of a particular actor, this is not always true. “Should” must never be confused with “is,” no matter how widespread what “is” may be. “Nice Nazis,” “gentlemen slavers,” and Reasonable Racists—this troika of odious oxymorons—stand as cautionary reminders of the danger of smug complacency in the face of what “is.”
Chapter Two
THE “INTELLIGENT BAYESIAN”: RECKONING WITH RATIONAL DISCRIMINATION
There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery—then look around and see somebody White and feel relieved.
—The Reverend Jesse Jackson, in a speech to a Black
congregation in Chicago decrying Black-on-Black crime
White America craves absolution. At least according to U.S. News & World Report it does. By admitting he sometimes fears young Black men, the Reverend Jackson “seemed to be offering sympathetic Whites something for which they hungered: absolution,” declared U.S. News.1 For other journalists, Jackson’s comments were as much about vindication as absolution—in their view, his comments put an acceptable face on their own discriminatory beliefs and practices. Richard Cohen of the Washington Post, for example, announced in his column that Jackson’s remarks “pithily paraphrase what I wrote” in 1986.2 He was referring to a 1986 column in which he asserted that if he were a shopkeeper, he would lock his doors “to keep young Black men out.” For Cohen, Jackson’s remarks proved that “it is not racism to recognize a potential threat posed by someone with certain characteristics.”
Cohen’s advocacy of discrimination against young Black men raises a second argument advanced to justify acting on race-based assumptions, namely, that, given statistics demonstrating Blacks’ disproportionate engagement in crime, it is reasonable to perceive a greater threat from someone Black than someone White. Walter Williams, a conservative Black economist, refers to someone like Cohen as an “Intelligent Bayesian,” named for Sir Thomas Bayes, the father of statistics.3 For Williams, stereotypes are merely statistical generalizations, probabilistic rules of thumb that, when accurate, help people make speedy and often difficult decisions in a world of imperfect information. Whether “intelligent” is an apt adjective for a person who discriminates on the basis of stereotypes remains to be seen. For now we shall simply refer to such a person as a “Bayesian.”
On its surface, the contention of the Bayesian appears relatively free of the troubling implications of the Reasonable Racist’s defense. While the Reasonable Racist explicitly admits his prejudice and bases his claim for exoneration on the prevalence of irrational racial bias, the Bayesian invokes the “objectivity” of numbers. The Bayesian’s argument is simple: “As much as I regret it, I must act differently toward Blacks because it is logical to do so.” The Bayesian relies on numbers that reflect not the prevalence of racist attitudes among Whites, but the statistical disproportionality with which Blacks commit crimes.
As with any school of thought, Bayesians range from the vulgar to the more refined. An example of a vulgar Bayesian is Michael Levin, a social philosopher, who uses statistics to argue that a person jogging alone after dark is morally justified in fearing a young Black male ahead of him on a jogging track: